Sunday, 20 May 2018

How to Adopt

Once you have decided that you want to adopt a child, figuring out how to begin an adoption can be quite challenging. One of the first steps is to do decide which type of adoption is right for you. Prospective parents may choose to work with an adoption agency or proceed with an “independent” adoption without agency involvement. Also, birth parents and adoptive parents must decide how much contact they want with one another. Additionally, prospective parents must follow state regulations mandating the “home study” process, court approval, and other steps along the way. This sub-section includes articles and resources to help you get started and successfully complete the adoption process.

How to Adopt

Locating a Child to Adopt

Unless you are seeking to adopt a specific child the first question many would-be adoptive parents must face is how to locate a child in need of adoption. Common methods for identifying an adoptable child include the following;

Adoption agencies and government organizations may facilitate adoption and provide other helpful services that ensure that parents are matched with appropriate children in need of adoption. Acting as a foster parent may lead to a successful adoption, though not all foster relationships can result in an adoption.

Surrogacy, contracting to have someone bear a child on your behalf; can help ensure a genetic relationship between the adoptive parent and child, although surrogates are also used in circumstances where the child has no biological relationship with either of the adoptive parents.

Doctors, lawyers, and religious organizations may be aware of children in need of adoption as a result of their contact with the community. Your social network, the internet, and paid advertisement are other methods a parent seeking a child to adopt may publicize their availability and interest.

Home Study in Adoptions

All states require prospective parents to complete a “home study.” This process ensures that adoptive families are prepared and educated sufficiently for the adoption. Home study also provides information about the intending parents to establish that they are capable of providing a healthy environment for an adopted child. Specific requirements for home study vary greatly, but there are some common elements.

Many home studies require prospective parents attend training focused on the challenges raising an adopted child. Interviews are quite common and several of them may be required. Home visits ensure that state licensing standards are met. Health and income statements intend to ensure that a serious health or financial problem will not jeopardize the adopted child. Background checks, autobiographical statements, and references help establish that the person has no record of criminal activity or child abuse and help ensure that prospective parents will provide a home free of abuse or neglect.

Petitioning the Court for an Adoption

Although details may vary greatly, adoptions require a petition to the appropriate court. A petition, at minimum, will typically identify all parties, request the termination of parental rights of the birth parents, if any, and urge that the adoptive parents be granted custody of the child.

Proceedings and petitions may be quite complicated. Rules can vary greatly between jurisdictions and are nearly always fairly complicated. Retaining an agency, attorney, or both may be necessary to assist in representation.

Free Consultation with Adoption Lawyer in Utah

If you have a question about a stepchild adoption or if you need a lawyer in Utah, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Saturday, 19 May 2018

Misleading Investors in Structured Notes

The Securities and Exchange Commission announced that Merrill Lynch has agreed to pay a $10 million penalty to settle charges that it was responsible for misleading statements in offering materials provided to retail investors for structured notes linked to a proprietary volatility index.

Misleading Investors in Structured Notes

According to the SEC’s order instituting a settled administrative proceeding, the offering materials emphasized that the notes were subject to a 2 percent sales commission and 0.75 percent annual fee.  Due to the impact of these costs over the five-year term of the notes, the volatility index would need to increase by 5.93 percent from its starting value in order for investors to earn back their original investment on the maturity date.  But the offering materials failed to adequately disclose a third cost included in the volatility index known as the “execution factor” that imposed a cost of 1.5 percent of the index value each quarter.

The notes were issued by Merrill Lynch’s parent company Bank of America Corporation, and Merrill Lynch had principal responsibility for drafting and reviewing the retail pricing supplements.  The SEC’s order finds that Merrill Lynch did not have in place effective policies or procedures to ensure its personnel drafted and approved disclosures that adequately disclosed the impact of the execution factor.

This is the agency’s second case involving misleading statements by a seller of structured notes. In October 2015, UBS AG agreed to pay $19.5 million to settle charges that it made false or misleading statements and omissions in offering materials provided to U.S. investors in structured notes linked to a proprietary foreign exchange trading strategy.

“This case continues our focus on disclosures relating to retail investments in structured notes and other complex financial products.  Offering materials for such products must be accurate and complete, and firms must implement systems and policies to ensure investors receive all material facts,” said Andrew J. Ceresney, Director of the SEC Enforcement Division.

Michael J. Osnato, Chief of the SEC Enforcement Division’s Complex Financial Instruments Unit, added, “This case demonstrates the SEC’s ongoing commitment to creating a level playing field when it comes to the sale of highly complex financial products to retail investors.”

The SEC’s order finds that Merrill Lynch violated Section 17(a)(2) of the Securities Act of 1933, which prohibits obtaining money or property by means of material misstatements and omissions in the offer or sale of securities.  Without admitting or denying the findings, Merrill Lynch agreed to cease and desist from committing or causing any similar future violations and pay a penalty of $10 million.

THE BURDEN FOR PLAINTIFFS IN CLAIMS OF BREACH OF FIDUCIARY DUTY

In Houseman v. Sagerman, the Delaware Chancery Court’s dismissal of the stockholder plaintiff’s claim for breach of fiduciary duty underscores the heightened pleading standard necessary to support such a claim by plaintiffs against a corporation’s directors arising out of allegations that the directors breached their duty in the process taken to approve the transaction.

The plaintiffs alleged that Universata’s board of directors conducted an imperfect process in regards to obtaining of the best price for stockholders. Two years after the merger between Universata, Inc. and Healthport Technologies, Inc. closed, the plaintiffs filed, among two other causes of action, the claim of breach of fiduciary duty. The plaintiffs allege that the director acted in bad faith by “knowingly and completely fail[ing] to undertake their responsibilities” to maximize shareholder value.

The Court, however, did not agree with the plaintiffs. The Court noted that the directors had, in fact, satisfied their duty of loyalty by taking into account, and acting upon, the advice of both their legal counsel and their financial advisor, Keyblanc. The allegations in the complaint showed that the Board had ultimately decided, after considering bids from several additional interested parties and negotiating the terms with Healthport, that it had obtained everything that the Board felt it could get.

Additionally, the plaintiffs failed to allege any facts that would prove a motive on the part of the directors to act in “bad faith.” The Court observed that the directors had a personal financial interest in obtaining the best price possible, dispelling the notion that the directors’ interests were not aligned with the interests of the company’s public stockholders.

According to the Court, the plaintiffs failed to plead sufficient facts to show that the board of directors of Universata “utterly failed to undertake any action to obtain the best price for stockholders.” The motion to dismiss, filed by certain directors and financial advisors of Universata, was therefore granted by the Court.

The Court, while recognizing that the approach the Board took was “less then optimal,” nevertheless granted the motion to dismiss, as the plaintiffs failed to meet the pleading standard. The decision in Houseman serves as a reminder to plaintiffs to be mindful of the high pleading burden that must be met to support a claim of breach of fiduciary duty.

 

EMPLOYERS: MAKE SURE YOUR STOCK OPTION PLAN ALLOWS YOUR GRANTEES THE ABILITY TO DEFER TAXABLE INCOME

The Code 83 regulations contain an important exception to the non-transferability rule that arises mostly with stock option grants, despite the fact that restricted stock grants are the type most often impacted by Code Section 83.

The exception to the regulations relates to profits realized under “short-swing” transactions. Under Section 16(b) of the Securities Act of 1934, any profit realized by an insider on a “short-swing” transaction must be disgorged by the company or a stockholder acting on the company’s behalf. “Short-swing” transactions are the non-exempt purchases and sales (or sales and purchases) of companies’ equity securities within a period of less than six months. In the event that a company grants a stock option that is not made under the applicable Section 16(b) exemption, it is deemed a non-exempt purchase.” Generally, the shares underlying the option are subject to the Section’s restrictions for six months after the date of the grant. Any sale of these shares within the six-month period following the grant date could be matched with the “purchase” and violate the Section.

With fairness in mind, it seems to follow that if a sale of shares would subject someone to potential SEC penalties, taxation on those shares would be delayed until the risk of liability lapses. Section 83 of the Code has always recognized this point. The Code Section 83 also recognizes that if a seller is restricted from selling shares of stock previously acquired in a non-exempt transaction within the past six months because of potential liability under Section 16(b), the shares are deemed to be subject to a substantial risk of forfeiture. This risk of forfeiture does not lapse, and as a result, the grantee will not realize taxable income until six months after which the acquisition of the shares by the grantee took place.

A question remained, however, regarding whether a subsequent non-exempt purchase could further extend the substantial risk of forfeiture. The final regulations answers this question, explaining with a new example that the Internal Revenue Service and the Treasury to not respect this type of strategy. The new example clearly notes that any options granted in a non-exempt manner will only be considered subject to substantial risk of forfeiture for the first six months after the date of the grant of the shares.

This new example means that the risk of disgorging any profits under Section 16(b) generally will not have any impact on the substantial risk of forfeiture analysis.

With this new example, the IRS is essentially eliminating any opportunity to abuse the Section 16(b). The IRS is reminding grantees that transfer restrictions alone cannot delay taxation. As a result, employers should be careful to ensure that their grants contain a valid substantial risk of forfeiture to allow the grantees the ability to defer taxable income.

Free Consultation with a Utah SEC Lawyer

If you are here, you probably have a business law or securities law matter you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Friday, 18 May 2018

Credit Card Debt in Bankruptcy

Credit Card Debt in Bankruptcy

In an economy where housing problems dominate the headlines, high interest credit cards still remain one of the largest issues consumers face in their fight for financial health. It should come as no surprise to learn then, that credit card debt is still one of the primary reasons consumers are forced to file for bankruptcy. When a credit card account has been delinquent for more than 180 days, banks will charge off what is owed as “bad debt” and sell the account to a debt collector who will call, harass and even sue if the past due balances are high enough. Mounting pressure from debt collectors pushes many consumers through the front door of a bankruptcy office because chapter 7 protection is widely perceived as the fastest and best way to get out from under unmanageable credit card debt. While it is true that filing for bankruptcy can help discharge credit card bills, there are some basics that every consumer needs to know before relying on bankruptcy as a debt relief measure.

In this post we will give you the basics so that you can evaluate whether bankruptcy is a good solution to your credit card problems. Please also be sure to browse the related posts section of this page for additional information.

Credit Card Debt is Dischargeable in Bankruptcy

That’s the number one rule when it comes to unsecured debts like credit cards debts and medical bills, they are dischargeable in bankruptcy. When you file for bankruptcy, all of your unsecured debts are eliminated, meaning you do not legally owe these bills any longer. Credit card companies who choose to pursue you for old, discharged debts will do so in violation of the law and will be subject to sanctions by the bankruptcy court. Furthermore, unlike debts that are forgiven through private negotiation with a lender, there is no tax liability for debts that are discharged in bankruptcy.

Your Credit Reports Should Show ZERO Balances on Your Credit Cards After Bankruptcy

This is an area where consumers get tripped up. After bankruptcy, The credit card companies are required to report discharged debt as having a ZERO balance. It is often necessary to check your credit report and confirm its accuracy after your case closes.

Fraud Will Prevent Credit Card Debt From Being Discharged

While the general rule is that credit card debt is easily eliminated by filing for bankruptcy, fraudulent activity can jeopardize your entire bankruptcy discharge. Using credit cards for luxury purchases prior to bankruptcy creates a presumption of fraud which can be difficult to overcome. Don’t use credit cards after meeting with a bankruptcy attorney unless you’ve decided not to file. The bottom line is any use of credit cards with the intention of not paying the debt back is fraudulent. The bankruptcy code protects debtors who behave in good faith and punish debtors who to try to game the system. For more information see: Using Credit Cards Before Bankruptcy is a Big No No!

Can You Keep a Credit Card Out of Your Bankruptcy?

All debts including credit card debts, must be disclosed in your bankruptcy petition. This means that you cannot keep any credit card that has a balance “out of your bankruptcy”, it must be disclosed and will be discharged along with the rest of your unsecured debts. Credit cards with zero balances do not create a debt obligation and are therefore not required to be disclosed in a bankruptcy filing. For more information see: Can I Keep a Credit Card Out of Bankruptcy?

Will I be Able to Get a Credit Card After Bankruptcy?

Believe it or not yes. Creditor companies often send debtors offers for credit cards after they filed for bankruptcy knowing that it will be 8 years before they can file for bankruptcy again. Additionally, bankruptcy will illuminate all of your unsecured debt making your debt to income ratio more attractive to lenders who see that you now have the ability to take on new debt. This is not to say that filing for bankruptcy is good for your credit, because it is not. However, consumers emerging from bankruptcy commonly receive offers for cards in the mail very soon after their bankruptcy case has closed. For more information see: Can You Keep a Credit Card After Filing for Bankruptcy?

Call a Utah Bankruptcy Attorney

The bottom line is that as long as you’re acting good faith credit card debt will be discharged in a bankruptcy filing. In fact, one of the main reasons why consumers are forced into bankruptcy is high-interest credit card debt. If you’re facing credit card bills that have spiraled out-of-control, it is never a bad idea to meet with a bankruptcy attorney to discuss your options.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Thursday, 17 May 2018

How to Determine if a Prenuptial Agreement is Right for You

Whether to enter into a prenuptial agreement or not is a very personal decision. Each individual and couple is unique. Therefore, you should base your decision on your own unique circumstances. Review the pros and cons of prenuptial agreements and then read through the steps below to help you decide if a prenuptial agreement is right for you.

How to Determine if a Prenuptial Agreement is Right for You

Pros of a Prenuptial Agreement

Some of the benefits of a prenuptial agreement include

  • documenting each spouse’s separate property to protect it as separate property,
  • supporting your estate plan and avoiding court involvement to decide property distribution,
  • distinguishing between what is marital and what is community property,
  • documenting and detailing any special arrangements between you and your spouse,
  • avoiding extended court proceedings, which result in the time of expensive divorce attorneys,
  • reducing conflicts during a divorce,
  • establishing procedures and rules for issues that may arise in the future, and
  • assigning debt, such as credit cards, school loans, and mortgages, to the appropriate spouse to avoid both spouses sharing debt liability.

Many people fear that discussing these matters, or even bringing up the word prenuptial agreement, will cause turmoil in their relationship. Often times, just the opposite is true. One of the main irreconcilable differences leading to divorce is finances. Talking to your spouse ahead of time regarding finances, property, and marital asset management can avoid a lot of these disagreements. You both can get on the same page in the beginning so that the issue does not pop up and cause an argument later. Furthermore, discussing these issues nurtures healthy communication. Even if you and your spouse decide a prenup is not for you, discussing the mentioned issues is a very good idea.

Cons to a Prenuptial Agreement

Although nuptial agreements carry a lot of benefits, there are some downsides that you should consider before creating one.

  • It’s not romantic. If you fear that discussing a property and finance distribution and the possibility of a separation or divorce will dull your relationship in some way, then a prenup may not be right for you.
  • The timing may not be right. The beginnings of a marriage are typically a time of marital bliss, when many of the issues involved in a prenup are not even a thought. You may be at a point in your lives where you don’t yet know the answers to some of the issues in a prenup. The truth is these issues will come up eventually, whether during the marriage or if you divorce. If you think the timing of discussing these issues is bad, or you just don’t have a basis for formulating decisions or answering questions, then the timing may not be right for you.

    You can always wait until after you are married, when you may know a little more about the management of your household. An agreement made after you’re married is called a “postnup”. These are enforceable, but be sure to consult an attorney before creating one, because the legalities and enforcement of postnups do vary from prenups.

  • There may be state laws that cover all of the issues you want to address, without a prenup. Different states have laws that determine how property is distributed in the case of a separation of divorce. These laws may be perfectly ideal for you. If so, there is no need of going through the trouble of creating a prenuptial agreement. On the other hand, there may be certain issues in your situation that are not covered by the law, and would nudge you towards clarifying the issue in a prenup.
  • A prenup cannot include child support or child custody issues. The court has the final say in calculating child support. The court determines child support based on a “best interest of the child” standard, with several factors at play. A court would never uphold a provision of a prenuptial agreement that dealt with child support.
  • A court can set aside any provisions it finds to be unfair or not in the interest of justice. For example, courts have set aside provisions that do not allow a spouse any share of the other’s bank account, if the account holder contributed greatly to that bank account during the marriage. The most commonly set aside provisions are alimony agreements and alimony waivers.
  • A prenup cannot include personal preferences, such as who has what chores, where to spend the holidays, or what school the children should attend. Prenuptial agreements are designed to address financially based issues. Judges grow uncomfortable when they see private domestic matters included in a contract, and will often view the document as frivolous, striking it down.

Analyzing your specific situation

Now that you have reviewed the pros and cons, think about your specific situation to decide if a prenuptial agreement is right for you.

Take The Prenuptial Agreement Questionnaire

  • Do you own real estate?
  • Aside from real estate, do you have more than $50,000 in assets?
  • Do you earn more than $100,000 a year in earned income?
  • Do you own any part of a business?
  • Do you have more than one year’s worth of retirement benefits?
  • Do you have employment benefits such as stock options or profit sharing?
  • Do you or your partner plan to go to school for an advanced degree, while the other works?
  • Does a part of your estate name beneficiaries or heirs other than your partner?

If you or your partner answered yes to one or more of these questions a prenuptial agreement is in your best interest. If you answered no to all of them, a prenup is probably not needed, but could still be used to protect your current or future assets.

Brainstorm Important Property Issues

Once you have decided that a prenuptial agreement is right for you, you need to decide what to include in your prenup. Your partner and you should each separately brainstorm and write down all of the property issues you want to include in your prenuptial agreement. Here is a list of some common prenup topics to help you:

  • Estate planning issues, for example, conveying family property or providing for children from previous marriages (not child support)
  • Separate business
  • Retirement benefits
  • Distinguishing separate and joint property
  • Holding yourself not responsible for your partner’s debts
  • Distribution in the event of divorce, including alimony
  • Income, deductions, and claims for filing your tax returns
  • Management of household bills
  • Management of joint bank accounts, if any
  • Arrangement regarding investing in certain purchases or projects, like a house or business
  • Management of credit card spending and payments
  • Savings contributions
  • Arranging putting one or the other through school
  • Property distribution to the survivor, including life insurance, in the event of death
  • Settlement of potential disagreements, such as using mediation or arbitration

Evaluate your comfort level

Once you have thought about whether you need a prenuptial agreement and what issues should be covered in your prenup, evaluate how comfortable you are with the idea of having a prenup. Familiarizing yourself with the laws of your state might also be helpful, especially if you question how a prenup affects your rights verses your given legal rights without a prenup.

Many people fear discussing the idea of a prenuptial agreement with their partner might upset or offend their partner. The fact is that the issues covered in a prenup will have to be discussed with or without a prenup. Perhaps practicing discussing difficult topics can start with the topic of a prenuptial agreement. Be upfront and honest with your partner. Tell him or her that it is a difficult topic, but that these issues do have to be discussed and decided on and can be done so in a respectful manner. Some people even use a third party professional, like a counselor, to help them sort through these issues in a loving way.

On the flip side, if you don’t want a prenup, but your partner does, use this opportunity to practice discussing difficult topics that are important to the relationship in a loving and nonthreatening manner. Whether you decide on a prenup or not, it will be a great communication tool and will teach each of you what the other needs and wants.

After considering all of this, evaluate your comfort level on a scale of one to ten. If you rated your comfort level at a six or above, you are ready to discuss the details of your prenup with your partner. Even with that much confidence, remember that your partner may not be as comfortable as you are. Be sympathetic to that. Also, remember that you two will disagree on some things, but that this is okay. Talk it out. Give yourselves plenty of time and be willing to seek help if you need it.

If you rated your comfort level at a four or five, you may still want to talk to your partner to see where he or she stands. Doing this may help you decide more or less on whether a prenuptial agreement is the right thing for you and your relationship.

Free Initial Consultation with a Lawyer in Utah

If you’ve decided you need a prenup, be sure to call a prenuptial agreement attorney so you don’t have mistakes and errors in the document that you can’t fix later. Call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Wednesday, 16 May 2018

What Is Malicious Mother Syndrome?

Divorce and custody proceedings are often high-stress, contentious events that can cause extreme behavior on the part of those involved. Some cases have resulted in situations tied to what is often called “Malicious Mother Syndrome” or “Malicious Parent Syndrome.” This syndrome was first theorized by Dr. Ira Turkat (who is a psychologist) to describe a pattern of abnormal behavior during divorce.

It is important to note that Malicious Mother or Malicious Parent Syndrome is not currently recognized as a mental disorder by the medical profession. Rather, the syndrome describes a type of behavior at issue in some court cases and has lead proponents to call for further study and research.

What Is Malicious Mother Syndrome

When this syndrome occurs, a divorced or divorcing parent seeks to punish the other parent, sometimes going far enough as to harm or deprive their children in order to make the other parent look bad. Though most commonly called Malicious Mother Syndrome, both mothers and fathers can be capable of such actions.

Characteristics of Malicious Parent Syndrome

In his initial discussion of Malicious Mother Syndrome, Dr. Turkat sought to identify and describe a condition where one parent acts purposefully and vengefully towards the other during or following divorce.

Malicious Parent Syndrome is characterized by four major criteria. Someone suffering from the syndrome:

  1. Attempts to punish the divorcing parent though alienating their children from the other parent and involving others or the courts in actions to separate parent and child;
  2. Seeks to deny children visitation and communication with the other parent and involvement in the child’s school or extra-curricular activities;
  3. Lies to their children and others repeatedly and may engage in violations of law;
  4. Doesn’t suffer any other mental disorder which would explain these actions.

Examples of Malicious Parents

The idea of identifying a syndrome or mental disorder to explain the actions of extreme malicious behavior by parents during divorce arose from examples of vindictive parents in clinical and legal cases. Some of these behaviors include burning down the house of an ex-spouse, falsely accusing the other parent of abuse, or purposely interfering with planned parenting time.

In one particular example that could be called an instance of malicious parent syndrome, a mother told her children they could not afford food because their father had wasted all their money. In another, a parent repeatedly misinformed the other parent about school activities, so that the parent could not participate in the child’s school life. In all of these actions, the intent is to harm the other parent.

Psychological Consequences of Malicious Acts

When one parent goes out of his or her way to hurt the other, great strain can be put on both the harmed parent and their relationship with the child. In some cases, a parent who is repeatedly subjected to malicious acts by their ex-spouse may withdraw from their child’s life in order to avoid further conflict. A malicious parent may also successfully manipulate a child, resulting in them disliking and wanting to spend less time with the other parent.

Legal Consequences of Malicious Acts

Many of the behaviors associated with malicious parent syndrome can have legal consequences and may constitute civil and criminal law violations.

Some actions related to Malicious Parent Syndrome can be easily understood as criminal acts, such as attacking the other parent or damaging their property. Depriving children of food or money, in order to make the other parent look bad, could constitute a form of child abuse, which can violate both family and criminal laws. Similarly, should a malicious parent lie under oath, he or she may be charged with the crime of perjury.

Other acts related to Malicious Parent Syndrome may be violations of civil law. For example, denying a parent their court-ordered visitation rights can constitute illegal parent time interference and can result in fines, court-ordered counseling, and adjustments to custody and visitation plans. Lying about the acts of the other parent in a way which harms his or her reputation and results in actual injury can constitute defamation.

Malicious behavior by a parent can also impact parenting plans and custody arrangements. If a parent has been involved in alienating, cruel or illegal behavior, this conduct can be considered a factor in any proceeding to gain or adjust custody.

If You’ve Been the Victim of a Malicious Parent

If you or your children have been the victim of an ex-spouse’s vengeful behavior which may be a result of Malicious Mother or Malicious Parent Syndrome, you’re not without recourse. You may be able to:

  • have custody and support agreements modified,
  • seek court-ordered counseling for the malicious parent or
  • obtain supervised visitation.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Tuesday, 15 May 2018

Divorce and Estate Planning

Divorce has become an everyday reality in the United States. If you’re planning to get a divorce, you should pay close attention to your short and long-term tax exposure before you divide marital assets. Read on to learn about the effects a divorce can have on your tax liability and estate plans.

Divorce and Estate Planning

Transfer of Assets Between Spouses

The IRS generally doesn’t consider the transfer of assets between divorcing spouses a taxable event. As long as you can demonstrate that divorce was the reason for the asset transfer, you can transfer cash and assets between you and your divorcing spouse tax free.

If you and your spouse have accumulated assets such as mutual funds, stocks, bonds, or artwork, you can be subject to a large capital gains tax bill when you attempt to divide them. For example, when you buy stock shares from your spouse the cost of that stock (for you) has risen. However, you will still be taxed based on the capital gain earned between the time you and your spouse purchased the stock at the original price and when you sell. Meanwhile, your ex-spouse does not need to pay taxes on the money you paid to buy the stock from him or her.

Sale of the Home

For most couples, their home is their most valuable jointly-owned asset. Typically, upon divorce you have three options:

  • Sell the home and split the proceeds immediately.
  • Sell the home and split the proceeds sometime in the future.
  • Allow one spouse to buy out the other’s interest in the property.

You can avoid paying capital gains taxes on the profits from your home sale if you reinvest the home sale proceeds within two years after the sale of your home. The home must be your principal residence, meaning you have lived in the home at least three years out of the last five. Divorced spouses can have a difficult time meeting this requirement when the divorce settlement allows one spouse to remain in the home for more than two years before it is sold. The ex-spouse not residing in the home can lose his or her eligibility to avoid the capital gains tax.

Retirement Funds

Retirement funds can be treated as marital property during a divorce settlement, so you may have to share retirement funds with your spouse. If your spouse has a right to a portion of your retirement funds, you must adhere to the applicable tax laws when you make distributions. You are not allowed to “alienate” or “assign” your qualified pension plan distributions to anyone else.

Qualified Domestic Relations Orders (QDROs)

If you have retirement funds you must share with your spouse upon divorce, it is highly advisable that you obtain a QDRO. A QDRO is a court order detailing the proper procedure for distribution of your retirement benefits in the future. The QDRO allows your benefits plan administrator to proceed with distributions as if you are still married to your ex-spouse, ensuring that neither spouse fails to receive his or her rightful benefits. The QDRO also resolves any issues that may arise if you or your ex-spouse remarry – current and ex-spouses each receive a proportionate share of the plan distributions.

Individual Retirement Accounts (IRAs)

Upon divorce, IRAs are generally considered the sole property of the original owner. However, if you make contributions to your IRA from your earnings during the course of your marriage, your spouse will be entitled to a proportionate amount of IRA assets. The exact distribution amount is subject to state laws.

IRA funds can be transferred tax-free from one spouse to another by a written divorce decree, but if you are the recipient of IRA funds you can be held responsible for a 20 percent federal income tax unless you ask your IRA trustee to roll the transferred funds into your own IRA.

Income Taxes

For married couples, filing separate tax returns is incredibly costly, so if you and your spouse can agree to continue to file jointly until the divorce is final, you will save yourself a lot of money. However, be cautious because if your spouse incurs tax liabilities and penalties, you will be jointly liable.

Dependency Exemption for Children

Unless there’s a court decree stipulating otherwise, the custodial parent is entitled to the dependency exemption. However, the custodial parent can release the exemption by filing IRS Form 8332. Only the custodial parent may take the child care credit, but both parents may able to deduct medical expenses, regardless of custody.

Your Estate Plan

In some states, statutes provide for automatic revocation of any estate plan provisions that mention your former spouse. Be sure to check the applicable laws in your state and make any necessary changes or you may find yourself unintentionally leaving property and assets to your former spouse or call our office for your free consultation.

Free Consultation with Divorce and Estate Planning Lawyer in Utah

If you have a question about divorce law or estate planning and administration in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Monday, 14 May 2018

Custody Problems

Custody Problems

Sometimes, a marriage or relationship ends badly. If children are involved, however, the former spouses must still communicate and cooperate to some degree, but child custody arrangements don’t always go according to plan. Custodial interference by a parent is one of the major problems that may arise after divorce or breakup, or in some non-divorce situations involving children. Here you will find tips on what to do if the other parent doesn’t fulfill his or her obligations under your parenting agreement or violates a court order related to custody or visitation. This section also includes information on out-of-state moves in child custody situations, parental abduction, and more.

Interference with Custody or Visitation

One of the biggest child custody problems is interference. This occurs when one or both of the parents intentionally disobeys the visitation schedule, fails to take custody of the children at the agreed-upon dates, or otherwise fails to live up to the parenting agreement. Sometimes this is done in order to retaliate against the other parent or simply to extend (or limit) one’s time with the children. Since a parenting agreement carries the force of law as a court order, failure to follow its directions can lead to criminal sanctions.

Interference can happen with custody or visitation, by the custodial or noncustodial parent. But not all interference is considered a violation of the court order. For example, protecting a child from danger; being late because of bad road conditions or other such circumstances; or honoring previous agreements that deviate from the parenting plan (such as a summer trip) are generally okay.

Types of Custodial Interference

There are countless examples of custodial interference, but here are some of the more common ways in which it may occur:

  • Refusing to hand off child to the other parent for a scheduled visitation
  • Limiting child’s telephone or online contact with the other parent
  • Intentionally failing to return the child at the predetermined time
  • Visiting the child during the other parent’s scheduled time with the child

Child Custody and Relocation

It’s sometimes necessary for one or both parents to move out of the area after a divorce, often for work or for more affordable housing, but this presents a problem for child custody arrangements. Relocation is okay as long as the parents have signed a relocation agreement and subsequent change in the parenting plan. But if there is a dispute over the move, the court may step in decide whether the relocation is in the best interests of the child.

Often, the original child custody arrangement and parenting plan will stipulate whether relocation is allowed. Some states require the custodial parent to provide advance written notice of an intended move to the noncustodial parent. States have different ways of determining whether relocation is appropriate in child custody cases and the terms for doing so; talk to an attorney for more details.

Virtual Visitation

Actual, physical time spent with parents cannot be replaced. But family courts are increasingly offering “virtual visitation” as the next-best thing under certain circumstances. A virtual visitation is one that uses video conferencing (such as Skype) or other such methods to provide the noncustodial parent and child a chance to connect. In fact, virtual visitation is one way to help children stay connected to noncustodial parents who either live far away, are traveling, or otherwise unable to meet the child in person.

Free Consultation with a Utah Custody Lawyer

If you have a question about child custody question or if you need help with custodial interference, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506